Asked and Answered . . .

Kathy Ossian on Apple/encrypted phones

Apple is in a pitched legal battle with the Federal Bureau of Investigation over the agency’s demand that Apple decrypt the iPhone of one of the attackers in the recent San Bernardino assault. Kathy Ossian of Ossian Law P.C. in Ferndale focuses exclusively on Information Technology Law. Practicing law for over three decades, Ossian has nearly 20 years of experience and expertise in IT Law. Formerly senior principal and chair of the Information Technology and Cyberlaw Section at Miller Canfield, she also served as a law clerk to U.S. District Judge Robert E. DeMascio.

Thorpe: Can you give us a quick primer on the issues?

The FBI has asked for Apple’s assistance in gaining access to the iPhone by deactivating the security feature that wipes the content of the device after a specified number of failed passcode attempts. On Feb. 16, a federal magistrate judge ordered Apple to comply with the FBI’s request. Apple then soon filed a motion to vacate the order, taking the position that the
FBI’s request goes beyond what is legally allowed.

Thorpe: You’ve said that the Apple action is not just about one phone. Explain?

Since October of 2015, the FBI has made similar requests of Apple for at least 15 iPhones, some of which have no connection with terrorist-related activities. Apple and some security and privacy experts have expressed an even greater concern — if Apple were compelled to provide the technical means to facilitate access to government-targeted phones, that technology could quickly become available to others, including domestic and international hackers, compromising the general security of all iPhones.

Thorpe: Apple has said that it not only won’t decrypt the phone, but that it can’t. True?

Apple has consistently stated that it currently has no method of getting around the security feature. From a technical standpoint, it seems that Apple should have the capability to write code to disable it (and certainly could do so for devices going forward). For Apple, the policy implications of writing and releasing the code are more daunting.   

Thorpe: What is a back door and why is Apple worried about that possibility?

A “back door” would provide a way around the security feature so that the FBI (or anyone else having access through it) could continue to try to unlock a device an unlimited number of times until they are successful. Apple is worried that the back door will nullify the other efforts the company has made in designing and building security and privacy into its devices. The availability of a back door would also be inconsistent with existing privacy laws and regulations, including the Federal Trade Commission’s security and “privacy by design” initiatives as well as foreign laws, like those of the European Union.

Thorpe: Lawmakers in Washington are proposing bills that would mandate uniformity in phone encryption laws across the states. Do you think this effort is needed and what chance of passage is there?

Some states, including California and New York, have proposed legislation to ban the sale of devices without the built-in capability to be decrypted and unlocked as well as provide civil penalties against device manufacturers. This has prompted the introduction of the federal Encrypt Act of 2016 to prohibit states from enforcing such legislation. The federal bill, now in the House Judiciary and House Energy and Commerce Committees, would maintain a uniform national approach on the security level of devices. It’s too soon to determine whether this bill will pass but I suspect there will be other legislative initiatives on this topic at both the state and federal level.

Thorpe: The future may hold secure devices or devices open to governmental scrutiny. From a legal standpoint, how do you believe it will unfold?

Apple’s motion to vacate the magistrate judge’s order argues that existing federal law doesn’t allow the government to compel Apple to “require a specific design,” i.e. create the back door. Apple’s argument is based largely on the policy implications of a decision in the FBI’s favor. Regardless of how the lower court rules, I expect the matter to be appealed and perhaps, ultimately, be decided by the U.S. Supreme Court in light of the privacy and security considerations.

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